Vellama d/o Marie Muthu v Attorney-General

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 01 August 2012
• Neutral Citation: [2012] SGHC 155
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 196 of 2012 (Summons No 2639 of 2012)
• Published date: 15 April 2014
• Year: 2012
• Hearing Date: 16 July 2012
• Plaintiff Counsel: M Ravi (L.F. Violet Netto)
• Defendant Counsel: David Chong SC and Tammy Low (Attorney-General's Chambers)
• Citation: [2012] SGHC 155

Philip Pillai J: Introduction

Originating Summons No 196 of 2012 and Summons No 2639 of 2012 are applications under Order 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) concerning the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”), which is the supreme law of Singapore.

This application invokes the court’s judicial review jurisdiction. Judicial review is founded upon the rule of law. In judicial review, the court looks not to the decision itself, which is properly the function of the relevant public officers, but only to the lawfulness of arriving at a decision. Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] 1 AC 617 at 644 explained that:

[The] officers or departments of central government … are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.

The purposes of judicial review include: (a) protecting the individual against illegal acts of the administration; (b) providing remedies for wrongs done to the individual; (c) ensuring that administrative bodies act lawfully; and (d) ensuring that administrative bodies perform their public duties: see M P Jain, Administrative Law in Malaysia and Singapore (LexisNexis, 4th Ed, 2011) at p 587.

The English common law courts devised special remedies known as prerogative orders for judicial review. These prerogative orders are special in the sense that these are public law remedies available only against public authorities. The four principal prerogative orders are: certiorari, prohibition, mandamus and the writ of habeas corpus. In Singapore, these orders are now known as the Quashing Order, Prohibiting Order, Mandatory Order, and the Order for Review of Detention respectively. Professor H W R Wade explains how each of the first three prerogative orders operate in Procedure and Prerogative in Public Law [1985] 101 LQR 180 at p 182:

The complainant, if he makes good his case, may have an adverse decision quashed by the ancient remedy of certiorari. If the blow has not yet fallen, he can ward it off with the remedy of prohibition. If some government authority is failing to perform a legal duty owed to him, he can compel them to perform it by another ancient remedy, mandamus. […] Those remedies belong to public law in the sense that they lie only against public authorities.

In Singapore, applications for first three prerogative orders must be made under Order 53 of the Rules of Court and are heard in two stages. At the first stage, the applicant must apply and obtain the leave of court to proceed. The court will not grant leave to proceed unless certain threshold conditions are met. The reason for requiring leave to proceed is to sieve out frivolous and hopeless applications at an early stage. It is ordinarily only if the threshold conditions for leave are met that the court will grant leave to proceed to the second stage and hear the application in open court. At the second stage, the applicant will have to establish his case in law and the court may, in its discretion, grant him a remedy.

Quite apart from judicial review, declarations may be sought under Order 15 rule 16 of the Rules of Court to determine the constitutionality of ordinary legislation and constitutional questions. In contrast to judicial review applications, applications for declarations under Order 15 rule 16 do not require leave of the court but must meet certain other conditions.

Events leading to the application

The grounds of this application were set out in the applicant’s affidavit dated 2 March 2012, and are summarized as follows: On 7 May 2011, Mr Yaw Shin Leong of the Workers’ Party was elected in the general election as the Member of Parliament for Hougang Single Member Constituency (“SMC”). On 15 February 2012, the Workers’ Party declared that Mr Yaw Shin Leong had been expelled from the party with immediate effect. On 28 February 2012, the Speaker of Parliament announced in Parliament that Mr Yaw Shin Leong’s seat in Parliament had become vacant pursuant to Article 46(2)(b) of the Constitution, by reason of his expulsion from the Worker’s Party.

On 2 March 2012, the applicant, Madam Vellama d/o Marie Muthu, filed Originating Summons No 196 of 2012 under Order 53 of the Rules of Court asking for leave to seek the following reliefs: Declarations: That the Prime Minister does not have unfettered discretion in deciding whether to announce by-elections in Hougang SMC; and That the Prime Minister does not have unfettered discretion to decide when to announce by-elections in Hougang SMC and must do so within three months or within such reasonable time as this Honourable Court deems fit; and Mandatory Order A Mandatory Order enjoining the Prime Minister to advise the President to issue a Writ of Election mandating by-elections in Hougang SMC pursuant to Article 49(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and section 24(1) of the Parliamentary Elections Act (Cap 218, 2011 Rev Ed) and to tender such advice within three months or within such reasonable time as the Honourable Court deems fit.

After hearing both counsel in chambers on the issue of whether leave to proceed should be granted, I reserved my decision. On 3 April 2012, I granted leave for the applicant to proceed to the second stage. The grounds of the decision to grant leave are set out in Vellama d/o Marie Muthu v Attorney-General [2012] 2 SLR 1033 (“the Leave Judgment”). The Attorney-General’s counsel (“AG’s counsel”) appealed against the grant of leave but subsequently withdrew the appeal on 16 May 2012. The applicant then filed Summons No 2639 of 2012 on 29 May 2012 to seek the same reliefs.

After leave was granted on 3 April 2012 for the applicant to proceed, the following events occurred (“ subsequent events”): On 9 March 2012, the Prime Minister made the following announcement in Parliament (see Singapore Parliamentary Debates, Official Report (9 March 2012), vol 88 at col 5):

I intend to call a by election in Hougang to fill this vacancy. However I have not yet decided on the timing of the by-election. In deciding on the timing I will take into account all relevant factors including the well-being of Hougang residents, issues on the national agenda, as well as the international backdrop which affects our prosperity and security.

On 9 May 2012, the President, upon the advice of the Prime Minister, issued the writ of election for Hougang SMC on 26 May 2012. The 26 May 2012 election returned Mr Png Eng Huat of the Workers’ Party as the elected Member of Parliament for Hougang SMC.

Before the second stage open court hearing, both counsel filed and exchanged extensive written submissions. At the open court hearing on 16 July 2012, both counsel orally summarised their submissions and expressly adopted and relied on their earlier written submissions.

The legal issues

This application raises two legal issues: “The Procedural Issue” (see [14] to [41] below) Does the court have the power to grant standalone declarations in an application commenced under Order 53 of the Rules of Court for a Mandatory Order which included the declarations? “The Substantive Issue” (see [42] to [117] below) Does the expression “shall be filled by election” in Article 49(1) of the Constitution mean that the Prime Minister must advise the President to issue a writ of election to fill the vacancy of an elected Member of Parliament? If so, when must the writ of election be issued?

In order to succeed in this application, the applicant must succeed on both issues. I shall now turn to the Procedural Issue.

The Procedural Issue

As a preliminary point, I should explain why the Procedural Issue turns on the declarations sought under Order 53. As set out earlier, the reliefs that the applicant sought in the application filed on 2 March 2012 were for a Mandatory Order under Order 53 rule 1 and included two declarations pursuant to Order 53 rule 1(1)(a). However, as it is trite law that the court will not make orders that do not serve any purpose, the subsequent events rendered the Mandatory Order academic even if the application might otherwise have succeeded on 2 March 2012. Indeed, counsel for the applicant informed the court at the open court hearing on 16 July 2012 that the applicant was abandoning her application for the Mandatory Order.

The case thus turned on the declarations sought in this application. At the leave application, there appeared to be some uncertainty as to whether or not the court has the power to grant declarations independent of the principal application (“standalone declarations”) under Order 53. Both counsel were invited to make further submissions on this issue at the open court hearing.

Submissions of counsel

Counsel for the applicant submitted that the court may grant standalone declarations, because Order 53 rule 1(1) states that the principal application “may include an application for a declaration”, and Order 53 rule 7(1) contemplates that the court may make “a Mandatory Order, Prohibiting Order, Quashing Order or declaration”, ie the word “or” in rule 7(1) should be read disjunctively from the other three orders.

The AG’s counsel, on the other hand, submitted that the court could not grant standalone declarations because Order 53 was amended on 1 May 2011 so as to empower the court to grant declarations under Order 53 proceedings only in conjunction with prerogative orders. In other words, the amendment was not intended to allow the court to grant declarations under Order 53 where no prerogative order was granted by the court.

This issue is not a question of construction of...